The congressional testimony by Justice Department Inspector General (IG) Michael Horowitz on Dec. 11 proved to be almost universally damning of the actions taken by the FBI, and despite ongoing efforts by Democrats, demolished the argument that the FBI engaged in proper conduct during its investigation of the Trump campaign.
When asked if he would have submitted the Page FISA renewal applications using the information that the FBI employed, Horowitz responded, “I would not have submitted the one they put in. No doubt about it. It had no business going in.”
Although many members of Congress, along with various media organizations, tried to focus on the Inspector General’s finding that the FBI was within its rights in opening the initial July 31, 2016, counterintelligence investigation, it should be noted that this was not the focus of the IG investigation. This matter was addressed by Horowitz on the very first page of his report:
“Our role in this review was not to second-guess discretionary judgments by Department personnel about whether to open an investigation.”
But this didn’t stop Democrats from attempting to challenge the validity of Horowitz’s report and cling to the notion that Horowitz had determined that the FBI had “adequate factual predication” to open their counterintelligence investigation into the Trump campaign.
Horowitz had noted in his report that the threshold for predication was “low” and specifically noted his concern that “Department and FBI policies do not require that a senior [Justice] Department official be notified prior to the opening of a particularly sensitive case such as this one.”
However, Horowitz directly contradicted Democrat assertions regarding his conclusion of FBI exoneration, noting, “It’s unclear what the motivations [of the FBI] were. On the one hand, gross incompetence, negligence? On the other hand, intentionality, and where in between? We weren’t in a position—with the evidence we had—to make that conclusion. But I’m not ruling it out.”
In their attempts to focus on this smaller aspect of the IG report, Democrats only succeeded in proving that the FBI was able to open its investigation into the Trump campaign because the rules, oversight, and governance of the FBI are ludicrously lax. And, as Horowitz noted in his report, these issues need to be immediately addressed.
At a later point in the hearing, Horowitz was questioned on the matter of bias by Senator Mike Crapo (R-Idaho) and in his response the Inspector General directly disputed that he found no bias with regard to the FBI’s process of obtaining a FISA application:
Crapo: If someone were to characterize what you are telling us to be—that you’re telling us there is no bias here—that’s not what you’re telling us?
Horowitz: That is not—as to the operation of these FISAs—what I’m telling you.
The matter of a finding of bias was further elaborated on by former U.S. Attorney Andrew McCarthy during an interview on Fox News. “He says ‘bias didn’t appear to affect the opening of the investigation,’ which he’s able to say because the standards for opening the investigation are so low as to be illusory. And then he says, ‘When we get to the FISAs, that’s where it becomes more difficult to assess.’”
McCarthy continued: “As I listen to him say that, I must say, if you were trying cases to Justice Department lawyers instead of common-sense juries, no one would ever be convicted. Because what he continues to say again and again is, ‘We did not get documentary or testimonial evidence that bias caused the irregularities,’ which is a lawyered way of saying there’s no document, and there’s no testimony that they drew from someone who said, ‘Yes, there was bias. Yes, I was biased. Yes, I saw bias.’ But when you prove bias in a courtroom you do it on the basis of common sense inference from what people say and what they do. You don’t rely on someone to say ‘I’m biased.’”
Horowitz was asked by Crapo about intentional versus grossly negligent conduct by the FBI. Crapo noted that it’s “mind-numbing to consider that it could be just accidental.” Horowitz responded that he found much of the FBI’s conduct inexplicable and stated he failed to receive satisfactory answers for many of the FBI’s actions.
“There is such a range of conduct here that is inexplicable,” he said, “and the answers we got were not satisfactory, that we’re left trying to understand how could all these errors have occurred over a nine month period or so, among three teams—hand-picked—the highest profile case in the FBI, going to the very top of the organization, involving a presidential campaign.”
The IG report also noted that spying on the Trump campaign did not begin when the FBI opened its counterintelligence investigation into the Trump campaign on July 31, 2016, but had in fact begun much earlier.
This fact was highlighted in Footnote 193 of the report, which stated that “in April 2016 NYFO [New York Field Office] prepared summaries of the information that ultimately led NYFO to open a counterintelligence investigation on Carter Page on April 6, 2016, and provided them to CD [Counterintelligence Division] officials at Headquarters to be used for a ‘Director’s note’ and a separate ‘Director’s Brief’ to be held on April 27, 2016.”
This same footnote also noted that the Inspector General was unable to interview former FBI Director James Comey in relation to “classified details” because “Comey chose not to have his security clearances reinstated for our interview.”
The Carter Page FISA was repeatedly addressed and Horowitz noted that “FBI and Department officials told us the Steele reporting ‘pushed the [FISA proposal] over the line’ in terms of establishing probable cause, and we concluded that the Steele reporting played a central and essential role in the decision to seek a FISA order.
“FBI leadership supported relying on Steele’s reporting to seek a FISA order after being advised of concerns expressed by a Department attorney that Steele may have been hired by someone associated with a rival candidate or campaign.”
The IG report noted that the FBI failed in its first attempts to obtain a FISA warrant on Page due to insufficient evidence or proof that Page was “an agent of a foreign power” as claimed by the FBI:
“When the team first sought to pursue a FISA order for Page in August 2016, a decision was made by OGC [Office of General Counsel], OI, or both that more information was needed to support a probable cause finding that Page was an agent of a foreign power.”
In other words, the Steele dossier was effectively the only evidence the FBI had that Page was somehow “an agent of a foreign power.” And this evidence compiled by former British intelligence officer Christopher Steele ran contrary to the documented work that Page had done for another governmental agency.
The IG report noted that the Page FISA “omitted information the FBI had obtained from another U.S. government agency detailing its prior relationship with Page, including that Page had been approved as an ‘operational contact’ for the other agency from 2008 to 2013.”
The report also detailed alterations made by FBI attorney Kevin Clinesmith regarding the background of Page, and how this was used to help justify the FISA application:
“In an email from the liaison to the OGC Attorney [Clinesmith], the liaison provided written guidance, including that it was the liaison’s recollection that Page had or continued to have a relationship with the other agency.”
However, when Clinesmith subsequently sent the liaison’s email to “SSA 2,” who was to be the affiant for the third and final FISA renewal, Clinesmith “altered the liaison’s email by inserting the words ‘not a source’ into it, thus making it appear that the liaison said that Page was ‘not a source’ for the other agency.”
As the IG Report notes, “Relying upon this altered email, SSA 2 signed the third renewal application that again failed to disclose Page’s past relationship with the other agency.”
Horowitz was asked about this matter during an exchange with Senator Ted Cruz and Horowitz affirmed this action by Clinesmith was indeed accurate:
Cruz: “A lawyer at the FBI creates fraudulent evidence, alters an email that is in turn used as the basis for a sworn statement to the [FISA] court that the court relies on. Am I stating that accurately?”
Horowitz: “That’s correct. That is what occurred.”
Clinesmith has reportedly been referred for criminal prosecution by Horowitz for allegedly altering the email connected to the surveillance warrant on Trump campaign adviser Carter Page.
Horowitz also made a significant disclosure regarding the unique legal restrictions that he was operating under during his investigation, correctly telling congressional members, “We’re the only IG that can’t review conduct of all the employees in our organization, including attorneys.”
The inability of Horowitz to review the conduct of attorneys is particularly shocking given that Horowitz is the Inspector General for the Department of Justice and FBI—a government division that has an overabundance of lawyers within its employ.
Horowitz was also questioned about the involvement of DOJ official Bruce Ohr. Prior to a series of demotions that occurred in December 2017 and January 2018, Ohr held two titles: associate deputy attorney general and director of the Organized Crime Drug Enforcement Task Force.
Ohr, who had known Steele since 2007, maintained ongoing contact with Steele throughout 2016 and into late 2017, and acted as a conduit between the FBI and Steele after the FBI had formally terminated Steele in November 2016 for talking to the media.
Ben Sasse (R-Neb.) asked Horowitz about Ohr’s involvement late in the hearing, seemingly genuinely perplexed as to Ohr’s involvement in the FBI’s counterintelligence investigation:
Horowitz: So at the time of these events he [Ohr] was an associate deputy attorney general and the head of the Organized Crime Drug Enforcement Task Force working out of the Deputy Attorney General’s office [Sally Yates].
Sass: The Organized Crime and Drug Enforcement Task Force? And that’s connected to election interference by the Russians how?
Horowitz: It is not.
Sass: What the hell’s he doing here?
Horowitz: That was precisely the concern which we lay out here. He had no role in any of the election interference matters.
Sen. Lindsey Graham (R-S.C.), during discussion about the defensive briefing provided to the Trump campaign, noted that the FBI used this meeting as an opportunity to effectively spy on the Trump campaign and gather further information—a characterization that the Inspector General agreed with. This prompted Graham to ask Horowitz the following question:
Graham: So when we get defensively briefed tomorrow, would it be okay for FBI agents to open up 302s on what we said?
Horowitz: We have very significant concerns about that.
This admission by Horowitz may have been exactly what was required to get the full attention of Congress and move them towards addressing the ridiculously lax oversight and controls of the FBI, along with other Intelligence Community organizations.
Horowitz was also asked by Graham if former FBI Director Comey was vindicated by the IG report, as Comey had publicly claimed earlier. Horowitz responded succinctly: “The activities we found here don’t vindicate anybody who touched this FISA.”
During the conclusion of Horowitz’s opening remarks, he noted that as a result of his findings, he was referring multiple senior FBI officials for their significant performance failures:
“Our final recommendation was to refer the entire chain of command that we outline here to the FBI and the Department for consideration of how to assess and address their performance failures.”
Howorowitz also announced that there would be an ongoing compliance audit and oversight process from the Office of Inspector General:
“We have today initiated an OIG audit that will further examine the FBI’s compliance with the Woods Procedures in FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.”